IN THE CASE OF:	  

	BOARD DATE:	  17 July 2008

	DOCKET NUMBER:  AR20080006114 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his undesirable discharge be upgraded to a general under honorable conditions discharge.  

2.  The applicant states, in effect, that his immaturity and alcohol and drug dependency led to his disciplinary actions.  

3.  The applicant provides a supplemental letter, dated 29 February 2008, and his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 12 November 1968 at 17 years of age.  He completed basic combat training at Fort Dix, New Jersey and was reassigned to Fort Sam Houston, Texas for advanced individual training (AIT).  At the completion of AIT, he was awarded military occupational specialty 91A (medical corpsman).  He was assigned to Germany in May 1969.

3.  On 31 July 1969, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being absent from his place of duty on 27 July 1969.  His punishment consisted of a verbal reprimand, a forfeiture of $29.00 pay for one month, a reduction to private, E-2 (suspended for 1 month), restriction for 7 days, and extra duty for 7 days.

4.  On 26 November 1969, the applicant accepted NJP under Article 15, UCMJ for being absent without leave (AWOL) from 17 November 1969 to 23 November 1969.  His punishment consisted of a reduction to private first class, E-3, a forfeiture of $36.00 for 1 month, restriction for 14 days, and extra duty for 14 days.

5.  On 2 December 1969, the applicant was convicted by a summary 
court-martial of damaging property of the United States and three specifications of breaking restriction.  He was sentenced to restriction for 60 days and a forfeiture of $100.00 pay for 1 month.

6.  On 29 December 1969, the applicant accepted NJP under Article 15, UCMJ for disobeying a lawful command from his superior commissioned officer.  His punishment consisted of a reduction to private, E-2, a forfeiture of $29.00 pay for 1 month, restriction for 14 days, and extra duty for 14 days.  

7.  On 2 January 1970, the applicant accepted NJP under Article 15, UCMJ for disobeying a lawful command from his superior commissioned officer.  His punishment consisted of a reduction to private, E-1, a forfeiture of $61.00 for 2 months, restriction for 45 days, and extra duty for 45 days. 

8.  The applicant's discharge packet is not available.  However, his DD Form 214 shows he was discharged on 21 April 1970 under the provisions of Army Regulation 635-212.  He was discharged with a separation code of 46A (Unsuitability, Apathy, Defective Attitude or Inability to Expend Effort Constructively) with an under other than honorable conditions (undesirable) discharge.  He completed 1 year, 5 months, and 10 days of creditable active service.

9.  There is no indication the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations.
10.  Army Regulation 635-212, then in effect, set forth the policy and procedures for the administrative separation of enlisted personnel for unfitness and unsuitability.  It provided, in pertinent part, for the discharge due to unsuitability of those individuals with apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively.  When separation for unsuitability was warranted an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

11.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation proceedings under the provisions of Army Regulation 635-212 for unsuitability, apathy, defective attitude or inability to expend effort constructively are not available.  

2.  The applicant's record of service shows he received four Article 15s and a summary court-martial.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  

3.  The governing regulation in effect at that time directed that separation for unsuitability warranted an honorable or general discharge.  However, the applicant was discharged with an undesirable discharge.

4.  Although the applicant’s overall record of service does not meet the standards for an honorable discharge, it would be proper to correct his records to show his character of service as general to conform with the regulatory guidelines.  

BOARD VOTE:

___xx___  __xx____  __xx____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected to show he was discharged from the Army on 21 April 1970 with service characterized as general (under honorable conditions).




       _    _xxxx__   ___
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20080006114





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ABCMR Record of Proceedings (cont)                                         AR20080006114



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